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Weekly Update Volume 32, Issue 19

07/01/2002

LITIGATION

Note: The cases listed are available from the ELR Document Service.

RCRA, WASTEWATER TREATMENT SLUDGE, STANDING:

The D.C. Circuit held that an environmental group lacks standing to challenge EPA's hazardous wastewater treatment sludge rule promulgated pursuant to RCRA. There is no argument that the interests the group seeks to protect are germane to its purpose or that neither the claim asserted nor the relief requested require an individual member of the group to participate in the lawsuit. However, no evidence was presented to suggest that at least one of the members of the group has standing to sue in her own right. Allegations submitted by the group's counsel describing injuries suffered by the group's members due to EPA's rule are not evidence. They concern matters beyond the scope of counsel's personal knowledge and are not sufficient to support standing. Additionally, a list of 28 street addresses, each purportedly that of a member of the group, is insufficient to demonstrate that at least one member of the group lived at the time of the filing and continues to live in a place affected by EPA's rule. Further, maps attached to the counsel's submission depicting that each of the 28 addresses is located within 5 miles of a facility affected by the rule do not support the proposition that there is substantial probability of actual or imminent injury to the group's members from their residing within 5 miles of the facility. Finally, an affidavit from a professor who has studied the issue does not help establish the group's standing to sue. Sierra Club v. Environmental Protection Agency, No. 01-1057 (D.C. Cir. June 18, 2002) (9 pp.).

ESA, RIO GRANDE SILVERY MINNOW, CRITICAL HABITAT:

The Tenth Circuit affirmed a district court decision requiring the FWS to prepare an EIS and issue a critical habitat designation for the Rio Grande Silvery Minnow within 120 days. In 1994, the minnow was listed as an endangered species. The FWS then gave itself until 1995 to designate a critical habitat for the minnow, but did not actually issue the designation until 1999 after it had been ordered to do so by the court. In designating the habitat, the FWS conducted an EA but not an EIS. The district court found that the FWS erred in its decision to forego an EIS and ordered the FWS to conduct an EIS and propose a new critical habitat designation within 120 days. The FWS proposed a new critical habitat designation but did not conduct an EIS. Because the FWS' delayed and inadequate compliance with NEPA and the ESA have helped to push the minnow perilously close to extinction, and because the record contains overwhelming evidence of the environmental impacts of a critical habitat designation, this case represents one of the rare circumstances when a remand to the agency to conduct yet another EA is not appropriate. It is clear that to fulfill the ESA's goal of halting and reversing the minnow's decline, the FWS should designate critical habitat as soon as possible. Additionally, there is overwhelming evidence that the designation will significantly affect the quality of the human environment, requiring the preparation of an EIS. Thus, the FWS was ordered to conduct an EIS and designate critical habitat in 120 days. Middle Rio Grande Conservancy District v. Norton, Nos. 01-2057, -2145 (10th Cir. June 21, 2002) (8 pp.).

HIGHWAY PROJECT, NEPA, DEPARTMENT OF TRANSPORTATION ACT §4(f):

The Tenth Circuit reversed a district court decision and held that the DOT must be preliminarily enjoined from proceeding with a highway project that involves road construction and expansion through parkland. The DOT prepared an EA and FONSI for the project instead of an EIS, and individuals filed suit, arguing that the DOT's actions violated NEPA and §4(f) of the Department of Transportation Act. The individuals who brought suit against the DOT adequately showed that the highway project would cause them irreparable harm, that the environmental harms from proceeding with the project without adequate NEPA review outweigh the legitimately incurred costs to the DOT from an injunction, and that the public interest associated with completion of the project must yield to the obligation to construct the project in compliance with the relevant environmental laws. Additionally, the individuals sufficiently showed that they would likely succeed on the merits of the case because the EA for the project prepared by the DOT was inadequate. Alternatives for the project were dismissed in a conclusory and perfunctory manner that do not support a conclusion that it was unreasonable to consider them as viable alternatives in the EA. Further, the significant and cumulative impact discussions in the EA were inadequate. Davis v. Mineta, No. 01-4129 (10th Cir. June 20, 2002) (13 pp.).

RUNWAY IMPROVEMENT PROJECT, CAA, NEPA:

The D.C. Circuit denied a city's petition to review the FAA's approval of a runway improvement project and held that the project does not violate the CAA or NEPA. The city has standing to bring suit against the FAA because it alleged harm to its own economic interests based on the environmental impacts of the approved project. Contrary to the city's allegations, however, the FAA did not omit 21 construction-related projects from the air quality analysis in the EIS. Both the draft EIS and the final EIS disclose all of the projects approved in the record of decision. Further, by failing to challenge the alleged non-inclusion of the 21 projects before the FAA, the city waived this claim under the CAA. Moreover, because the FAA's finding that the nitrogen oxide emissions resulting from the proposed project fall within the de minimis threshold is not unreasonable, the city's CAA claims are rejected. Additionally, the city's claim that the FAA failed to disclose that the project would not meet state or federal water standards is essentially a collateral attack on the state environmental director's decision to grant a waiver from state and federal water standards and not a basis on which to grant relief under NEPA. City of Olmsted Falls, Ohio v. Federal Aviation Administration, No. 00-1548 (D.C. Cir. June 14, 2002) (11 pp.).

LANDFILL EXPANSION, FEDERAL AVIATION ACT, AIR NAVIGATION HAZARD:

The D.C. Circuit held that the FAA was arbitrary and capricious in determining that a waste disposal company's proposed landfill expansion near an airport would be a hazard to air navigation. Under the Federal Aviation Act, accompanying regulations, and the FAA handbook, the FAA is authorized to determine whether a proposed construction or alteration project will present a hazard to air navigation. The waste disposal company sought the FAA's opinion on the impacts of the company's proposed landfill expansion, and the FAA's determination identified five adverse impacts on the safe and efficient use of navigable airspace. The FAA subsequently affirmed its hazardous determination. The FAA, however, acted arbitrarily and capriciously and violated its own standards in affirming the hazardous determination. The FAA conducted an aeronautical study on the impacts of the proposed project without providing notice to interested parties or negotiating with the company to identify mitigation measures that could eliminate purported adverse effects, as it is directed to do by its regulations. Additionally, the FAA was arbitrary and capricious in failing, without explanation, to give the company notice of two new issues it ultimately relied on in affirming the initial hazard determination. When the FAA decides to conduct a review without a hearing, as it did here, the FAA handbook requires it to advise interested parties of the specific issues to be considered. Further, the FAA's factual conclusions about the proposed landfill expansion were flawed. The findings of adverse impact upon which the FAA affirmed its hazard determination are unsupported by substantial evidence in the record. BFI Waste Systems of North America, Inc. v. Federal Aviation Administration, No. 01-1152 (D.C. Cir. June 18, 2002) (11 pp.).

RIPENESS, NATIONAL PARKS AIR TOUR MANAGEMENT ACT, SIGHTSEEING FLIGHTS:

The D.C. Circuit held that an environmental group's challenge to the FAA's determination that the National Parks Air Tour Management Act does not bar proposed sightseeing tours out of the Jackson Hole, Wyoming, airport is not ripe for review. In 1999, and again in 2000, an individual applied to the airport's managing board for permission to operate charter services, including scenic air tours, out of the airport. The board approved the individual's application and then rescinded, concerned that the scenic tours would violate the Act's restrictions on conducting sightseeing tours over national parks. The individual and the board applied to the FAA for determinations on various parts of the Act and their applicability to the individual's proposed flights. The FAA concluded that the proposed flights would not violate the Act, and an environmental group petitioned for review. The group's petition, however, is not ripe for review. The interpretation of the Act that the environmental group challenged was set forth in three FAA letters that on their face demonstrate the tentativeness of the legal determination regarding the individual's operations. The FAA's interpretation of the Act was not based on a factual determination that the individuals' actual operations would be immune from regulation under the Act. Rather, in determining that the Act did not bar the proposed flights, the FAA relied solely on the individual's descriptions of the flights. In essence, the FAA's views were based on a hypothetical factual scenario and hence are not appropriate for review. Additionally, the issues raised by the environmental group's petition are not strictly legal in nature. Determining the applicability of the Act to the individual's actual flights requires the application of law to facts based on evidence that was not before the FAA and is not before the court. And the challenges to the FAA's interpretation of the Act, which present legal issues, are intertwined with the FAA's assessment of the facts. Further, the environmental group failed to demonstrate immediate, direct, and significant hardship to warrant immediate review. Thus, the group's petition was dismissed as unripe. Natural Resources Defense Council v. Federal Aviation Administration, No. 01-1225 (D.C. Cir. June 14, 2002) (9 pp.).

PENNSYLVANIA HAZARDOUS SITES CLEANUP ACT (HSCA), "RELEASE," RESPONSE COSTS:

The Third Circuit reversed a district court decision that a property owner could not recover response costs under HSCA because he failed to establish a release or threat of release of hazardous substances. A town previously used the property as a landfill, and when testing revealed hazardous substances in the property's groundwater, the owner brought suit against the town under HSCA. The district court held that a release did not occur at the property because a release only occurs when a hazardous substance is released from a site and not when it is released at, in, or on the site. However, the district court misconstrued the definition of "release" under HSCA. The Act defines a "release" to include the dumping or disposal of hazardous substances into the environment. "Disposal" is further defined as placing hazardous substances into the air, water, or land in a manner that allows the substance to enter the environment. The town's dumping of hazardous materials into an unlined landfill on the property constitutes the placing of materials into the land that allows them to enter the environment. Thus, the town's disposal of hazardous substances constitutes a "release" under the HSCA. Moreover, the district court's interpretation is at odds with HSCA's statutory scheme and remedial intent, case law interpreting the Act, and a similar provision under CERCLA. Further, the owner can recover the costs incurred in testing the site, but he cannot recover litigation costs. The HSCA §1115 citizen suit provision allows recovery of litigation costs, but the owner's suit is a private cost recovery action under HSCA §702, which does not provide for recovery of litigation costs. Additionally, the court remanded for further documentation of some response costs claimed by the property owner. Joshua Hill, Inc. v. Whitemarsh Township Authority, No. 00-3677 (3d Cir. June 24, 2002) (12 pp.).

CERCLA, LAND CONTAMINATION, JURISDICTION:

The Fifth Circuit held that a district court lacked jurisdiction under CERCLA and the All Writs Act to hear landowners' land contamination claim against various corporations that owned and operated hazardous waste sites. After being sued by the federal government under CERCLA, the corporations entered a consent decree that involved the cleanup and remediation of the sites. The landowners subsequently brought suit in state court against the corporations alleging negligence and strict liability under state tort law. The case was removed to federal district court, which found in favor of the corporations, and the landowners appealed. The district court, however, erred in holding that it had jurisdiction pursuant to CERCLA. Although the landowners alleged that one of the corporations was in violation of both state and federal, this is not sufficient to render the action as one arising under federal law. Here, state law provides a cause of action under which the landowners can attempt to prove that the corporations tortiously caused damage to their land and can demand the relief they seek. Additionally, various courts have held that the CERCLA saving clauses preserve parties' rights arising under state law. Thus, CERCLA does not completely preempt the landowners' claims under state law. Moreover, the circumstances of the case are not so extraordinary that they demand the removal under the All Writs Act to protect the integrity of the consent decree. The landowners seek compensatory damages under state tort law for alleged injuries to their land. They do not claim violations of the consent decree or allege that the actions complained of are in conformity with the consent decree; nor do they seek any changes to the consent decree. The district court's decision was therefore vacated and remanded with directions that the case be returned to state court. MSOF Corp. v. Exxon Corp., No. 01-30122 (5th Cir. June 20, 2002) (6 pp.).

TAKINGS, RESOLUTION OF WESTERN LANDS DISPUTE ACT, RAILROADS:

The Federal Circuit affirmed the U.S. Court of Federal Claims' holding that the passage of the Resolution of Western Lands Dispute Act did not effect a taking of a railroad's land. When the railroad was incorporated in 1866, it was granted large areas of public land by the U.S. government. In exchange for the land, the railroad was required to carry government freight and personnel at reduced rates. In 1897, the government enacted a statute that offered to owners of land within the boundaries of a designated forest reserve the right to exchange their land for an equal area of available federal land outside the forest reserve, and in 1902, the railroad exchanged 882,358 acres of land located in forest reserves. In 1940, the railroad acted on a statute passed by the U.S. government relieving the railroads of their obligation to carry government personnel and freight at reduced rates in exchange for the release of any claims against the government to interests in, compensation, or reimbursement for lands. The Resolution of Western Lands Dispute Act, passed in 1993, directed the DOI and USDA to identify all of the parcels of land that the railroads had relinquished to the United States but for which selection or other rights had not been exercised and to quitclaim the original lands back to the railroads, unless they were identified as nationally significant lands. The lands at issue here were identified as nationally significant lands. The Court of Federal Claims correctly held that no taking occurred. The release executed by the railroad in accordance with the 1940 act was a broad release of all claims on account of the railroad land grants. Additionally, the railroad did not suffer a taking based on equitable interests retained in its base lands that were conditionally relinquished in the 1902 agreements. The nature of any equitable or conditional interest in the transferred lands before the 1940 release is no longer relevant because any such rights arising from the 1902 contracts were released upon the DOI's acceptance of the railroad's 1940 release. Santa Fe Pacific Railroad Co. v. United States, No. 01-5063 (Fed. Cir. June 21, 2002) (16 pp.).

TOXIC TORTS, RADIOACTIVE EMISSIONS EXPOSURE, CAUSATION:

The Ninth Circuit held that a district court erred in granting summary judgment to a nuclear facility operator sued by individuals for injuries allegedly arising out of their exposure to radioactive emissions from the facility. The district court's prior discovery order led the individuals reasonably to believe that to survive summary judgment on generic causation, they needed only to prove that they were exposed to the type of radioactive and non-radioactive emissions released from the facility that were capable of causing the alleged illnesses. By adopting the facility's "doubling of the risk" standard in the second of three stages of discovery, the court deviated from its own discovery orders and prematurely decided issues of individual causation. The relevant case law and the record here reflect that the individuals' expectations about the parameters of generic causation described in the district court's discovery orders were justified. Generic causation has been defined by courts to mean whether the substance at issue had the capacity to cause the harm alleged, while individual causation refers to whether a particular individual suffers from a particular ailment as a result of exposure to a substance. Thus, the appropriate understanding of generic causation is the one asserted by the individuals: whether exposure to a substance for which a defendant is responsible, such as radiation at the level of exposure alleged by the individuals, is capable of causing a particular injury or condition in the general public. The district court's order requiring specific threshold exposure levels were not clear, and, therefore, the individuals could not have reasonably anticipated that most of their case would be dismissed on the ground that they had failed to prove individualized exposure to threshold doses. Additionally, the threshold level that the district court required the individuals to meet, a level that doubled the risk of suffering the alleged injuries, is not relevant to a case in which there is scientific evidence that the substance is capable of causing the complained of injuries. Radiation is capable of causing a broad range of illnesses, even at the lowest doses. To show generic causation, the individuals had to establish by scientific evidence that radiation was capable of causing the type of injuries the individuals actually suffered. And the individuals offered expert testimony to show the generic capacity of levels of radiation emitted from the facility to cause illnesses experienced by the individuals. In re Hanford Nuclear Reservation Litigation, Nos. 98-36142 et al. (9th Cir. June 18, 2002) (29 pp.).

NATURAL GAS ACT (NGA), DIRECT PIPELINE CONNECTION:

The Eleventh Circuit held that FERC had jurisdiction to issue orders permitting the construction of a direct delivery connection between a gas company's natural gas pipeline and a factory. Before the FERC orders, the factory received its gas from a city. When FERC issued the orders, the city petitioned for review claiming that the orders authorizing the direct connection were unlawful because they did not fall within FERC's jurisdiction under the NGA and because FERC acted arbitrarily and capriciously in permitting the direct connection. However, the NGA and all of the circuit courts interpreting it allow FERC to regulate the interstate transport of natural gas purchased by end users from other sources in competition with local distribution companies, such as the city. Further, FERC has jurisdiction over the delivery connection between the pipeline and the factory even though the delivery arguably effects a local sale through the transfer of the title to the natural gas at a direct delivery connection facility that the gas company is building at the factory. The only part of the direct delivery approved by FERC is the interstate transportation of natural gas. While the new facility arguably facilitates a local retail sale from the gas company to the factory--and that sale may or may not be subject to state regulation--FERC did not approve that sale. Moreover, the U.S. Supreme Court has approved of FERC's authorization of the unbundling of generation and transmission services when the commission is acting, as it is here, within the letter of its statutory grant. Similarly, FERC did not abuse its discretion by denying the town's request for an evidentiary hearing or for related discovery concerning the bypass agreement between the gas company and the factory. In addition, FERC's interpretation of the gas company's tariff provision and propriety of the requested direct delivery connection was not arbitrary and capricious. Board of Water, Light & Sinking Fund Commissioners of the City of Dalton, Georgia v. Federal Energy Regulatory Commission, No. 01-10216 (11th Cir. June 20, 2002) (24 pp.).

INSURANCE, DUTY TO DEFEND, DUTY TO INDEMNIFY:

A California appellate court reversed a trial court opinion that an insurer did not have a duty to defend or indemnify a company whose predecessor was covered by the insurer. After a series of mergers and acquisitions, the present company was formed and subsequently sued in state and federal court for environmental contamination. The company sought indemnification from the insurance company, which had provided insurance coverage to the company's predecessor. The trial court erred in determining that the insurer did not have a duty to defend or indemnify the company. The fundamental fact is that the insurer wrote insurance for claims arising from the predecessor company's operations during the policy periods and is now being asked to provide coverage for just those kind of claims. If none of the mergers, sales, or transactions, however labeled, had taken place, the insurer would have been obliged to defend and indemnify the predecessor company on those claims. There is no logical reason to absolve the insurer of its duties simply because the heirs to the liability have different names, corporate forms, or owners. Additionally, the mergers did not increase the risk the insurer originally agreed to insure. Further, the insurer's argument that it did not consent to the assignment of its insurance is irrelevant. The rationale for honoring "no assignment" clauses vanishes when liability arises from presale activity. What is relevant is whether the predecessor's acts occurred before the sale, not whether they matured into cognizable causes of action before that time. The insurer chose its insured, chose to take on the risk of lawsuits like the underlying suits here, collected premiums based on its decision, and is being asked to perform precisely on the risk it insured. Associated Aviation Underwriters, Inc. v. Purex Industries, Inc., No. B149365 (Cal. Ct. App. June 17, 2002) (12 pp.).

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

AIR:

  • EPA added 18 area source categories of hazardous air pollutants to the list developed under the Integrated Urban Air Toxics Strategy. 67 FR 43112 (6/26/02).
  • EPA designated a new reference method for measuring concentrations of carbon monoxide in ambient air and a new equivalent for measuring concentrations of ozone in ambient air. 67 FR 42557 (6/24/02).
  • EPA proposed NESHAPs for wood building products surface coating operations. 67 FR 42399 (6/21/02).
  • EPA replaced "Refractories Manufacturing" with "Refractory Products Manufacturing" on the list of categories of major sources of hazardous air pollutants and proposed NESHAPs for new and existing refractory products manufacturing sources. 67 FR 42107 (6/20/02).
  • EPA approved Puerto Rico's CAA §§111(d)/129 plan for implementing and enforcing the emission guidelines for existing hospital/medical/infectious waste incinerator units. 67 FR 41179 (6/17/02).
  • EPA determined that the Baton Rouge, Louisiana, ozone nonattainment area did not attain the one-hour ozone NAAQS by the November 15, 1999, attainment date for serious nonattainment areas, and, therefore, the area will be reclassified to severe. 67 FR 42687 (6/24/02).
  • EPA redesignated the Payson, Arizona, nonattainment area to attainment for the NAAQS for particulate matter having an aerodynamic diameter of 10 micrometers or less (PM10). 67 FR 43013 (6/26/02).
  • EPA also redesignated the Bullhead City, Arizona, nonattainment area to attainment for the PM10 NAAQS. 67 FR 43020 (6/26/02).

DRINKING WATER:

  • EPA announced that it intends to approve revisions to Florida's public water system supervision program. 67 FR 43598 (6/28/02).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed prospective purchaser agreement under CERCLA in connection with the Franklin Smelting site in Philadelphia, Pennsylvania. 67 FR 42561 (6/24/02).
  • EPA entered into a proposed administrative settlement under CERCLA in connection with the Stoller Chemical/Pelham Phosphate site in Pelham, Georgia. 67 FR 41995 (6/20/02).

  • EPA entered into a proposed prospective purchaser agreement under CERLCA in connection with portions of the former Northwestern Steel site in Sterling, Illinois. 67 FR 41994 (6/20/02).

  • EPA entered into a proposed prospective purchaser agreement under CERCLA in connection with the DeRewal Chemical Company Superfund site in Kingwood Township, New Jersey. 67 FR 41724 (6/19/02).

  • EPA entered into a proposed administrative settlement under CERCLA in connection with the Roebling Steel Superfund site in Roebling, New Jersey. 67 FR 41724 (6/19/02).
  • EPA granted a petition to exclude from the lists of hazardous wastes certain hazardous wastes generated at Nissan North America, Inc.'s automobile assembly plant in Smyrna, Tennessee. 67 FR 42187 (6/21/02).
  • EPA approved revisions to Wisconsin's hazardous waste program under RCRA. 67 FR 43027 (6/26/02).
  • EPA proposed to approve revisions to Oregon's hazardous waste program under RCRA. 67 FR 41207 (6/17/02).

MINING:

  • OSM proposed to amend current regulations that require it to provide notice whenever it receives a state or tribal application to build public facilities using abandoned mine land reclamation funds. 67 FR 41755 (6/19/02).
  • OSM approved an amendment to Montana's abandoned mine land reclamation plan under SMCRA. 67 FR 41825 (6/20/02).
  • OSM approved an amendment to Kentucky's regulatory program under SMCRA. 67 FR 41622 (6/19/02).
  • OSM proposed to approve an amendment to Kentucky's regulatory program under SMCRA. 67 FR 41653 (6/19/02).
  • OSM proposed to approve an amendment to Wyoming's regulatory program under SMCRA. 67 FR 41656 (6/19/02).

PENALTIES:

  • EPA amended the civil monetary penalty inflation adjustment rule as mandated by the Debt Collection Improvement Act of 1996. 67 FR 41343 (6/18/02).

TRANSPORTATION:

  • The Research and Special Programs Administration revised and clarified its hazardous materials safety rulemaking and program procedures. 67 FR 42947 (6/25/02).

WATER QUALITY:

  • EPA proposed a range of options to address storm water discharges from construction sites. 67 FR 42643 (6/24/02).
  • EPA announced the availability of its proposed Effluent Guidelines Program Plan for 2002/2003. 67 FR 41417 (6/18/02).

WETLANDS:

  • DOE announced that it prepared a floodplain/wetland assessment in connection with its proposal to demolish the above-ground portions of two structures built to retain or divert flood waters at the Los Alamos National Laboratory and to keep intact five other structures with continuing maintenance, which could include periodic sediment removal actions. 67 FR 43298 (6/27/02).
  • DOE announced that it prepared a floodplain/wetland assessment in connection with its proposal to grant an easement to the Public Service Company of New Mexico to construct, operate, and maintain a 15,000 foot, 12-inch diameter natural gas transmission line on DOE-owned land at the Los Alamos National Laboratory. 67 FR 43300 (6/27/02).
  • DOE announced that it will prepare a floodplain and wetlands assessment in connection with its proposal to transfer approximately 957 acres of land located on the Oak Ridge Reservation in Roane County, Tennessee, to the Community Reuse Organization. 67 FR 41970 (6/20/02).

WILDLIFE:

  • FWS proposed to delist the Douglas County, Oregon, distinct population of Columbian white-tailed deer from the list of endangered and threatened wildlife. 67 FR 42217 (6/21/02).
  • FWS and the U.S. Forest Service established regulations for seasons, harvest limits, methods, and means related to the taking of wildlife for subsistence uses in Alaska during the 2002-2003 regulatory year. 67 FR 43709 (6/28/02).
  • FWS and the U.S. Forest Service made regulatory adjustments and exceptions to the Subsistence Management Regulations for Public Lands in Alaska to protect salmon escapement in the Copper River and Yukon and Kuskokwim River drainages. 67 FR 42185 (6/21/02).
  • The National Marine Fisheries Service (NMFS) is prohibiting the use of all pound net leaders measuring 12 inches and greater stretched mesh and all pound net leaders with stringers in the Virginia waters of the mainstream Chesapeake Bay effective immediately through June 30 and then from May 8 to June 30 each year; NMFS is also imposing year round reporting and, when requested, monitoring requirements for the Virginia pound net fishery. 67 FR 41196 (6/17/02).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Magnan, No. 1:01-CV-333 (D. Vt. June 14, 2002). A settling CWA defendant that engaged in the unauthorized discharge of dredged or fill material into U.S. waters located in wetlands in Farfield, Vermont, must pay a $5,000 civil penalty, must restore the wetland, and must implement certain mitigation measures restricting livestock use of the riparian area. 67 FR 43341 (6/27/02).
  • United States v. Simpson, No. 01-288-E-BLW (D. Idaho). A settling defendant that violated the CWA and a scenic easement and committed trespass resulting from the unauthorized discharge of dredged or fill materials into waters of the United States in Custer County, Idaho, must pay a $23,750 civil penalty, must restore the site, must conduct additional injunctive relief, and is enjoined from discharging dredged or fill material into U.S. waters, violating the scenic easement, and trespassing. 67 FR 42582 (6/24/02).
  • United States v. Neville Land Co., No. 97-1683 (W.D. Pa. May 14, 2002). Settling CERCLA defendants must perform the EPA-selected remedy for contaminated groundwater at the Ohio River Park Superfund site on Neville Island, Pennsylvania, and must pay $35,839 in past U.S. response costs. 67 FR 42058 (6/20/02).
  • United States v. Alpha Construction, No. 02 C 3609 (N.D. Ill. May 30, 2002). Twenty-five settling CERCLA defendants must perform work at the Lenz Oil Services, Inc., Superfund site near Lemont, Illinois, at an estimated cost of $8 to $12.5 million, and 22 settling defendants will cash out under the settlement. 67 FR 41447 (6/18/02).
  • United States v. City of Gary, Indiana, Nos. H 78-29, 86-540 (N.D. Ind. Apr. 30, 2002). Under a modified consent decree involving CWA and TSCA violations at a wastewater treatment plant in Gary, Indiana, settling defendants must undertake a detailed assessment of competing methods for disposing of waste material in the Ralston Street Lagoon; must complete the disposal method selected for the lagoon by the federal government; must carry out additional cleanup of the contaminated sediment now found in the Grand Calumet River, which is the receiving water for the treatment plant; and must pay a $150,000 civil penalty. 67 FR 41448 (6/18/02).
  • United States v. Mulberry Phosphates, Inc., No. 8-01-CV-692-T-23TGW (M.D. Fla. June 4, 2002). In connection with a 1997 spill of over 50 million gallons of process water into the Alafia River from a phosphoric acid/fertilizer production facility, settling CERCLA and CWA defendants must pay over $3.65 million to plan, implement, and oversee projects to restore oyster reef, estuarine wetlands, and riverine habitat in the affected watershed to compensate for natural resource injuries caused by the spill, and must pay approximately $1 million to reimburse federal, state, and county agencies for costs they incurred assessing the environmental damages. 67 FR 41448 (6/18/02).

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved. 

THE CONGRESS

CHAMBER ACTION

  • H.R. 1906 (Pu'uhonua O Honaunau National Historical Park), which would amend the Act that established the Pu'uhonua O Honaunau National Historical Park to expand the boundaries of that park, was passed by the House. 148 Cong. Rec. H3571 (daily ed. June 17, 2002).
  • H.R. 2941 (brownfields), which would facilitate the provision of assistance by HUD for the cleanup and economic redevelopment of brownfields, was passed by the House. 148 Cong. Rec. H3095 (daily ed. June 4, 2002). The bill would clarify that funding can be provided to brownfield environmental cleanup and economic development under HUD's Community Development Block Grant program.
  • H.R. 3786 (Glen Canyon National Recreation Area), which would revise the boundary of the Glen Canyon National Recreation Area in Utah and Arizona, was passed by the House. 148 Cong. Rec. H3830 (daily ed. June 14, 2002).
  • H.R. 3858 (New River Gorge National River), which would modify the boundaries of the New River Gorge National River in West Virginia, was passed by the House. 148 Cong. Res. H3831 (daily ed. June 14, 2002).
  • H.R. 3936 (Shoshone National Recreation Trail), which would designate and provide for the management of the Shoshone National Recreation Trail, was passed by the House. 148 Cong. Rec. H3570 (daily ed. June 17, 2002).
  • H.R. 3937 (Cibola National Wildlife Refuge), which would revoke a Public Land Order with respect to certain lands erroneously included in the Cibola National Wildlife Refuge, California, was passed by the House. 148 Cong. Rec. H3829 (daily ed. June 24, 2002).
  • H.R. 4103 (land transfer), which would direct the Secretary of the Interior to transfer certain public lands in Natrona County, Wyoming, to the Corporation of the Presiding Bishop, was passed by the House. 148 Cong. Rec. H3567 (daily ed. June 17, 2002).

COMMITTEE ACTION

  • S. 1227 (National Falls Heritage Area) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-179, 148 Cong. Rec. S6126 (daily ed. June 27, 2002). The bill would authorize the Secretary of the Interior to conduct a study of the suitability and feasibility of establishing the Niagara Falls National Heritage Area in New York.
  • S. 1240 (land acquisition) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-178, 148 Cong. Rec. S6013 (daily ed. June 25, 2002). The bill would provide for the acquisition of land and construction of an interagency administrative and visitor facility at the entrance to American Fork Canyon, Utah.
  • S. 1325 (land exchange) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-180, 148 Cong. Rec. S6126 (daily ed. June 27, 2002). The bill would ratify an agreement between the Aleut Corporation and the United States to exchange land rights received under the Alaska Native Claims Settlement Act for certain land interests on Adak Island.
  • S. 1768 (Calfed Bay-Delta Program) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-71, 148 Cong. Rec. S5956 (daily ed. June 24, 2002). The bill would authorize the Secretary of the Interior to implement the Calfed Bay-Delta Program.
  • S. 2024 (national trails) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-164, 148 Cong. Rec. S5632 (daily ed. June 17, 2002). The bill would authorize use of electric personal assistive mobility devices on trails and pedestrian walkways constructed or maintained with federal-aid highway funds.
  • S. 2064 (environmental conflict resolution) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-168, 148 Cong. Rec. S5901 (daily ed. June 21, 2002). The bill would reauthorize the U.S. Institute for Environmental Conflict Resolution.
  • H.R. 601 (Craters of the Moon National Monument) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-181, 148 Cong. Rec. S6126 (daily ed. June 27, 2002). The bill would redesignate certain lands within the Craters of the Moon National Monument, and for other purposes.
  • H.R. 3397 (land acquisition) was reported by the House Committee on Resource. H. Rep. No. 107-508 (daily ed. June 17, 2002). The bill would would authorize the Secretary of the Interior to acquire the property known as Pemberton's Headquarters and to modify the boundary of Vicksburg National Military Park to include that property.
  • H.R. 3558 (invasive species; federal lands) was reported by the House Committee on Resources. H. Rep. No. 107-512, 148 Cong. Rec. H3667 (daily ed. July 18, 2002). The bill would protect, conserve, and restore native fish, wildlife, and their natural habitats on federal lands through cooperative, incentive-based grants to control, mitigate, and eradicate harmful nonnative species.
  • H.R. 3786 (Glen Canyon National Recreation Area) was reported by the House Committee on Resources. H. Rep. No. 523, 148 Cong. Rec. H3858 (daily ed. June 24, 2002). The bill would revise the boundary of the Glen Canyon National Recreation Area in Utah and Arizona.
  • H.R. 3858 (New River Gorge National River) was reported by the House Committee on Resources. H. Rep. No. 107-509 (daily ed. June 17, 2002). The bill would modify the boundaries of the New River Gorge National River in West Virginia.
  • H.R. 3942 (John Muir National Historic Site) was reported by the House Committee on Resources. H. Rep. No. 107-513, 148 Cong. Rec. H3667 (daily ed. July 18, 2002). The bill would adjust the boundary of the John Muir National Historic Site.

BILLS INTRODUCED

  • S. 2627 (Cleland, D-Ga.) (marine species) would protect marine species off the coast of Georgia. 148 Cong. Rec. S5584 (daily ed. June 14, 2002). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 2634 (Clinton, D-N.Y.) (National Park Service) would establish within the National Park Service the 225th Anniversary of the American Revolution Commemorative Program. 148 Cong. Rec. S5696 (daily ed. June 19, 2002). The bill was referred to the Committee on the Judiciary.
  • S. 2636 (Torricelli, D-N.J.) (recreation benefits; U.S. Army Corps of Engineers) would ensure that the Secretary of the Army treats recreation benefits the same as hurricane and storm damage reduction benefits and environmental protection and restoration. 148 Cong. Rec. S5696 (daily ed. June 19, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2637 (Conrad, D-N.D.) (SMCRA) would amend the Internal Revenue Code of 1986 and SMCRA to protect the health benefits of retired miners and to restore stability and equity to the financing of the United Mine Workers of America Combined Benefit Fund and 1992 Benefit Plan by providing additional sources of revenue to the Fund and Plan. 148 Cong. Rec. S5606 (daily ed. June 19, 2002). The bill was referred to the Committee on Finance.
  • S. 2640 (Feinstein, D-Cal.) (Yosemite National Park) would provide for adequate school facilities in Yosemite National Park. 148 Cong. Rec. S5606 (daily ed. June 19, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2641 (Murray, D-Wash.) (TSCA) would amend TSCA to reduce the health risks posed by asbestos-containing products. 148 Cong. Rec. S5606 daily ed. June 19, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 2652 (Graham, Fla.) (land exchange) would authorize the Secretary of Agriculture to sell or exchange certain land in Florida. 148 Cong. Rec. S5851 (daily ed. June 20, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2670 (Kyl, R-Ariz.) (wildfires) would establish institutes to conduct research on the prevention of, and restoration from, wildfires in forest and woodland ecosystems. 148 Cong. Rec. S5956 (daily ed. June 24, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2672 (Bingaman, D-N.M.) (national forests) would provide opportunities for collaborative restoration projects on National Forest System and other public domain lands. 148 Cong. Rec. S5956 (daily ed. June 24, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2680 (Baucus, D-Mont.) (oil and gas leases; Lewis and Clark National Forest) would direct the Secretary of the Interior to evaluate opportunities to enhance domestic oil and gas production through the exchange of nonproducing federal oil and gas leases located in the Lewis and Clark National Forest, in the Flathead National Forest, and on BLM land in Montana. 148 Cong. Rec. S6013 (daily ed. June 25, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 4947 (Solis, D-Cal.) (wilderness) would designate certain public lands as wilderness and certain rivers as wild and scenic rivers in California, and would establish the Ancient Bristlecone Pine Forest. 148 Cong. Rec. H3600 (daily ed. June 17, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4948 (Thompson, D-Cal.) (Wilderness) would designate certain public lands as wilderness and certain rivers as wild and scenic rivers in the northern portion of California, would designate salmon restoration areas, and would establish the Sacramento River National Conservation Area. 148 Cong. Rec. H3601 (daily ed. June 17, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4949 (Thompson, D-Cal.) (Wilderness) would designate certain public lands in Humboldt, Del Norte, Mendocino, Lake, and Napa Counties in California as wilderness, and would designate certain segments of the Black Butte River in Mendocino County, California, as a wild or scenic river. 148 Cong. Rec. H3601 (daily ed. June 17, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4952 (Peterson, D-Minn.) (land conveyance) would provide for the conveyance of the land containing the Mount Wilson Observatory in the Angeles National Forest, California, to the Mount Wilson Institute, the nonprofit organization operating the observatory. 148 Cong. Rec. H3601 (daily ed. June 17, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4953 (Walden, R-Or.) (land conveyance) would direct the Secretary of the Interior to grant to Deschutes and Crook Counties in Oregon a right-of-way to West Butte Road. 148 Cong. Rec. H3601 (daily ed. June 17, 2002). The bill was referred to the Committee on Resources.
  • H.R. 4966 (Gilchrest, R-Md.) (ocean and coastal resources; NOAA) would improve the conservation and management of coastal and ocean resources by reenacting and clarifying provisions of a reorganization plan authorizing NOAA. 148 Cong. Rec. H3720 (daily ed. June 19, 2002). The bill was referred to the Committees on Resources, and Science.
  • H.R. 4968 (Cannon, R-Utah) (land exchange) would provide for the exchange of certain lands in Utah. 148 Cong. Rec. H3720 (daily ed. June 19m 2002). The bill was referred to the Committee on Resources.
  • H.R. 4977 (Miller, R-Fla.) (land exchange) would authorize the Secretary of Agriculture to sell or exchange certain land in Florida. 148 Cong. Rec. H3774 (daily ed. June 20, 2002). The bill was referred to the Committee on Agriculture.
  • H.R. 4996 (Duncan, R-Tenn.) (land exchange) would provide for an exchange of certain private property in Colorado and certain federal property in Utah. 148 Cong. Rec. H3825 (daily ed. June 21, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5000 (Pastor, D-Ariz.) (land acquisition) would direct the Secretary of the Interior to take lands in Yuma County, Arizona, into trust as part of the reservation of the Cocopah Tribe of Arizona. 148 Cong. Rec. H3825 (daily ed. June 21, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5009 (Walden, R-Or.) (land conveyance) would direct the Secretary of the Interior to convey certain land to the city of Haines, Oregon. 148 Cong. Rec. H3859 (daily ed. June 24, 2002). The bill was referred to the Committee on Resources.

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved. 

IN THE STATES

To see archived versions of State UPDATE, please go to the State UPDATE section of the UPDATE archive.

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved.

INTERNATIONAL

GENERAL

  • Indonesian Forestry Minister Muhammad Prakosa said his country instituted, on June 8, a complete prohibition on the export of logs and wood chips. The measure follows up on a temporary ban that went into effect last October and expired in May. A ban was tried in 1980 but was subsequently replaced with an export tax.
  • The European Union (EU) ratified the Cartagena Protocol on Biosafety, bringing the number of ratifiers up to 36. The Protocol will enter into force when 50 of the 110 signatories sign it. "This is another example of our commitment to finding multilateral solutions for global problems," said EU Environment Commissioner Margot Wallstrom. See http://www.biodiv.org/biosafety/signinglist.asp?order=date The U.S. is not a party to the Protocol.
  • The International Conference on Sustainable Agriculture and Rural Development in Mountain Regions ended in Adelboden, Switzerland, with a call for increased sustainability efforts in mountainous areas. See http://www.sard-m2002.ch/
  • Iran asked Afghanistan to restore water flow in the Helmand River to replenish now-dry Lake Hamoun.
  • Norway said it would, after a 14-year interruption, violate international whaling rules and export whale meat to Iceland.
  • Japan said it would no longer oppose bowhead whaling by Russian and Alaskan Eskimos. The issue had sparked considerable debate at the most recent meeting of the International Whaling Commission. But the diplomatic trade-off appears to be Japan's insistence that the U.S. itself tolerate the controversial Japanese minke hunts.
  • Brazilian, Swedish, and British officials, meeting in Rio to mark the tenth anniversary of the Earth Summit, urged developed countries to agree to funding poverty reduction and environmental protection measures and activities in the developing world. Brazilian President Fernando Henrique Cardoso said that "Brazil and the majority of developing countries do not accept reopening negotiations on principles and concepts established at Rio 92. Political leaders have to have a vision for the future . . . . They have to have the courage to confront other important questions related to development, such as, for example, protectionism and market access." Brazil's foreign minister said that technology transfers, development assistance, and market access in developed countries for the developing world's agricultural exports would be the chief issues his country would advance at the upcoming World Summit on Sustainable Development (WSSD). British Deputy Prime Minister John Prescott attended, supposedly at the urging of United Nations officials who feared that the WSSD would be a "disaster" if disputes between developed and developing countries are not set aside or resolved. See http://news.independent.co.uk/world/environment/story.jsp?story=308124
  • Also present was South African President Thabo Mbeki, the host of the WSSD. He urged national leaders to attend. President Bush has already announced that he will not; he plans to travel to Africa next year on an AIDS-prevention tour. Mbeki said he would work hard to bridge north-south divides in advance of the WSSD. "The failure to find consensus in Bali on some of these issues places increased responsibility on the president, as chairperson of the WSSD, to ensure that a basis for agreement is developed between now and August," Mbeki said. "We will be starting a process of consultation with the major groupings in the United Nations system to explore the possibilities of finding consensus."
  • U.N. Environmental Program Executive Director Klaus Toepfer said one priority of the WSSD should be to replenish the Global Environment Facility. And he said he is still hopeful that Bush will attend. "I am still convinced that the United States too will be aware of the need for their leadership," he said. "I am also realistically optimistic that the United States will play their part and the decision [as to whether Bush will attend] will be very carefully considered," Toepfer added. "More than ever we have to fight all together against terrorism. But we must also use this alliance against hunger and hopelessness, and for globalization with a human face."
  • South African officials said they were enhancing security measures in anticipation of receiving 65,000 guests at the WSSD. "We have learned lessons from Seattle, Genoa and Davos," said police director of VIP protection Sean Tshabalala. "The same will not be allowed to happen. . . . Spontaneous activities are just not acceptable. A group of people gathering spontaneously will be picked up and locked up."
  • Brazil's Chamber of Deputies postponed consideration of a controversial measure that would increase protection of the country's Atlantic Forest.
  • The World Day to Combat Desertification and Drought was noted with new reports indicating that desertification continues at a rapid pace, particularly in Africa and Asia.
  • The Convention on International Trade in Endangered Species (CITES) said it had received 54 proposals to amend lists of species subject to trade rules. Willem Wijnstekers, the Convention's Secretary-General, said they bring up the question of "what role CITES should play regarding commercially valuable fish and timber species and the kinds of incentives that local communities will need to continue protecting the wildlife that surrounds them."
  • An article published in Proceedings of the National Academy of Sciences concludes that mankind is expending 15 months' worth of environmental capital each year, or using 25% more natural resources annually than can be replenished. "We are preparing for ecological bankruptcy," said one of the study's authors, Mathis Wackernagel of Redefining Progress. See http://www.pnas.org/

CLIMATE CHANGE

  • An article in Science magazine said that climate change is allowing parasitic plant and animal diseases to thrive in areas in which they were previously unknown. An example is Hawaiian mountain birds suffering from malaria. See http://www.sciencemag.org/cgi/content/full/296/5576/2158
  • Brazil's Senate ratified the Kyoto Protocol.
  • Global warming is having an adverse effect on Alaskan fishing villages, according to a report. See http://www.timesonline.co.uk/article/0,,3-330519,00.html
  • An increase in trading volume caused pricing on the U.K. carbon trading market to go higher.
  • The Australian EcoGeneration Association, a trade group of renewable energy generators, said that the country could significantly benefit from Kyoto ratification because it could easily export abatement credits.
  • Hydro-Quebec endorsed ratification by Canada. Herb Dhaliwal, Canada's Minister of Natural Resources, said that uncertainty about Canada's position on ratification was not helpful and that the issue ought to be wrapped up within the next six months.
  • Japan's Ministry of Economy, Trade, and Industry said it will form a private-public partnership to support Japanese companies who embark on greenhouse gas reduction activities in foreign markets.

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved. 

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